STATE OF NORTH CAROLINA Breast surgery

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					STATE OF NORTH CAROLINA                                         IN THE OFFICE OF
                                                            ADMINISTRATIVE HEARINGS
COUNTY OF PASQUOTANK                                               04 DHR 0986

Charlene L Powell                                  )
       Petitioner                                  )
                                                   )
       vs.                                         )                   DECISION
                                                   )
North Carolina Department of Health and            )
Human Services, Division of Medical                )
Assistance                                         )
       Respondent                                  )

       This matter came on for hearing before the undersigned administrative law judge on February
22, 2005, in Elizabeth City, North Carolina. Petitioner was present, and appeared pro se. Emery E.
Milliken, Assistant Attorney General, appeared on behalf of Respondent, the North Carolina
Department of Health and Human Services, Division of Medical Assistance (“DMA”).

      At the close of all evidence, the undersigned directed Respondent to draft a decision with any
arguments Respondent desired to make. Respondent’s draft decision was received April 21, 2006.

                                              ISSUE

        Whether Respondent properly denied prior approval for Medicaid coverage for bilateral
breast reduction surgery for petitioner.

                                       APPLICABLE LAW

       Sections1905(d); 1905(a)(15); 1902(i)(1) of the Social Security Act
       N. C. Gen. Stat. Ch. 108A, Article 2, Parts 1 and 6
       N. C. State Plan for Medical Assistance
       10A NCAC 22O.0301

                                      FINDINGS OF FACT

        1.     The parties received notice of hearing more than 15 days prior to the hearing date and
notice of hearing was in all respects proper.

       2.      Petitioner requested prior approval for Medicaid coverage for bilateral breast
reduction surgery.

        3.    Respondent is the agency responsible for administering North Carolina's medical
assistance (Medicaid) program.
       4.      Petitioner, at the time of DMA’s review was a 39 year old female with breast
hypertrophy and complaints of back pain, bra-strap grooving and an inability to stand for more than
one hour at one time.

        5.    Her medical records showed that at the relevant time she was 179 pounds and 5’5” in
height. Her bra size was indicated as 42DD.

       6.      On December 29, 2003, petitioner’s physician, Dr. Susan Lovell-Allen, submitted a
request to Electronic Data Systems (“EDS”) for prior approval for bilateral breast reduction. The
request indicated diagnoses of macromastia, pain in shoulder, pain in back, and intertrigo.

        7.     The evidence shows that EDS is under contract with DMA to provide independent
medical consultation for certain utilization functions. One of those utilization functions is the review
of prior approval requests for breast reduction surgeries.

       8.      Dr. Sarah Morrow is employed by EDS and reviewed petitioner’s request for prior
approval for this procedure. Dr. Sarah Morrow is a licensed medical doctor in the State of North
Carolina. She is the Medical Director at EDS and has worked there for over 20 years. She graduated
from medical school at the University of North Carolina at Chapel Hill . She first became licensed
as a medical doctor in North Carolina in 1945. She is an expert in the field of medicine.

        9.     Dr. Morrow testified that when she reviews a request for prior approval for breast
reduction surgery she reviews the relevant documentation to determine whether or not the procedure
is medically necessary. Dr. Morrow reviewed all of the relevant materials in this case and found that
Petitioner was not disabled for activities of daily living by her breasts and did not have uncontrolled
infection. Based on this review, Dr. Morrow concluded and opined this procedure was not medical
necessary for this petitioner at this time. Dr. Morrow further found that some of Petitioner’s
complaints were not consistent with the symptoms typically associated with large breasts.
Accordingly, it was Dr. Morrow’s opinion that this procedure would not likely correct or improve
petitioner’s complaints.

         10.  Elizabeth Osborn, MSN, RN is employed with the Division of Medical Assistance
and performs utilization reviews on prior approval requests for certain surgeries. She carefully
reviewed the medical documentation in this case. In trying to determine whether or not this
procedure was medically necessary, she reviewed Medicaid’s guidelines which are set forth in the
May 1995 and August 2001 Medicaid bulletins. These criteria are meant to establish whether or not
medical necessity exists for a breast reduction surgery. A review of the criteria set forth in these
Medicaid bulletins show that Ms. Powell does not meet the criteria set forth. For instance criteria
states that:

               “at least two of the following conditions must be documented:
               1. Symptomatic kyphosis and osteoarthritis of the cervical spine as
               documented on x-ray. 2. Documented scoliosis of the thoracic spine greater
               than 15 degrees. 3. A history of chronic back, shoulder or chest pain, which
               incapacitates her ability to perform any work or personal duties. 4. Chronic
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               intertrigo with or without pigmentation changes, which is recurrent or is
               unresponsive to antibiotic and antifungal therapy. 5. An axillary inlet
               syndrome with numbness and tingling that is specifically related to the
               enlarged breasts.”

        A review of the evidence in this matter shows there is no documentation of any symptomatic
kyphosis or osteoarthritis of the cervical spine documented by x-ray. Although Ms. Powell
complains of back pain, there is no medical documentation which shows an incapacitating back
condition. There is no documentation of scoliosis of the spine. There is no documentation of any
other debilitating conditions and no documentation of chronic intertrigo or axillary inlet syndrome.

        11.    While Ms. Powell testified that she has back pain every day and that she needs this
surgery to eliminate that back pain, the greater weight of the evidence does not support a finding that
this surgery will alleviate her complaints of back pain.

      12.     Petitioner’s medical records fail to document that bilateral breast reduction surgery is
medically necessary for petitioner.

                                    CONCLUSIONS OF LAW

     1.      The parties properly are before the Office of Administrative Hearings (“OAH”) and
OAH has jurisdiction over the subject matter involved in this contested case.

        2.      The burden of proof is upon petitioner to show that the requested surgery is medically
necessary and that she meets the legal requirements to receive prior approval from respondent for the
bilateral breast reduction surgery.

       3.      Petitioner failed to satisfy this burden.

        4.     Respondent has shown and the Court concludes that bilateral breast reduction surgery
is not medically necessary for petitioner at this time.

                                             DECISION

        Based upon the foregoing findings of fact and conclusions of law, the undersigned hereby
determines that respondent’s decision to deny prior approval for Medicaid coverage for bilateral
breast reduction surgery for petitioner is AFFIRMED.

                                              NOTICE

        The North Carolina Health and Human Services, Division of Medical Assistance, will make
the Final Decision in this contested case. N.C.G.S. § 150B-36(b), (b1), (b2), and (b3) enumerate the
standard of review and procedures the agency must follow in making its Final Decision, and
adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.


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        Pursuant to N.C.G.S. § 150B-36(a), before the agency makes a Final Decision in this case, it
is required to give each party an opportunity to file exceptions to this decision, and to present written
arguments to those in the agency who will make the Final Decision. N.C.G.S. § 150B-36(b)(3)
requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final
Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail
Service Center, Raleigh, N.C. 27699-6714.

        This the 3rd day of May, 2006.

                                                                ______________________________
                                                                Beecher R. Gray
                                                                Administrative Law Judge




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Description: STATE OF NORTH CAROLINA Breast surgery